Eliezer v The Council of St Andrew's Cathedral School

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicants' child attended St Andrew's Cathedral School (the School) between August 2014 and August 2016. It was a condition of enrolment that the applicants pay the School fees in exchange for tuition. The applicants did not pay any fees for tuition provided in terms 1, 2 and 3 of 2016 and suspended the child's enrolment at the School from 11 August 2016. In the meantime, the first applicant gave notice to the School on 31 May 2016 that the child would leave the School at the end of August 2016 owing to identified conduct of the child's teacher. By Statement of Claim filed in the Small Claims Division of the Local Court, the School sought payment of the outstanding school fees. The first applicant, on behalf of the applicants, filed a Defence asserting that it was "an essential condition of enrolment" that the child would benefit from the School's gifted and talented program and that because the child was not included in that program the applicants had no liability to pay the outstanding fees on the basis that the School had breached, and thereby repudiated, its contract with the applicants. On 27 November 2019, the Assessor in the Local Court upheld the School's claim and entered judgment in favour of the School for $18,212.88. The first applicant, on behalf of the applicants, appealed to the District Court alleging the Assessor had "acted…with lack of jurisdiction" and had "denied procedural fairness…". The District Court judge found the Local Court did have jurisdiction to hear the School's claim and that the applicants had been not been denied procedural fairness. On 19 November 2019, Hatzistergos DCJ dismissed the appeal and upheld the Local Court decision. By Summons filed in the Court of Appeal on 19 February 2021, the first applicant, on behalf of the applicants, sought orders seeking to quash the decisions of the Local and District Courts on the basis of jurisdictional error and error of law on the face of the record. The issues before this Court were: 1. whether the decision of the District Court judge was vitiated by jurisdictional error and error of law on the face of the record because the District Court judge: 1. misapprehended the meaning of "lack of jurisdiction"; 2. did not engage on a bona fide assessment of the grounds of appeal; 3. did not give adequate reasons; and 4. erred in awarding costs against the applicants; 1. whether the Local Court decision was vitiated by jurisdictional error because the Local Court Assessor: 1. failed to take into account "jurisdictional facts"; 2. gave judgment notwithstanding having notice of the alleged fact that the applicants had a cross-claim or set-off; and 3. was not a valid exercise of jurisdiction; 1. whether the Local Court decision was vitiated by error of law on the face of the record because the Local Court Assessor: 1. failed to strike out the applicants' defence; 2. accepted false evidence from the School; and 3. accepted evidence from a witness who was not an employee of the School at the time of the contract between the parties.

Held (per Stevenson J; Payne and White JJA agreeing):

As to Issue (a): No jurisdictional error or error of law on the face of the record of the District Court was established: [37] to [67]. The District Court judge was correct to hold that the Local Court did have jurisdiction to hear the School's claim and did not misapprehend the meaning of "lack of jurisdiction": [37] to [48]. The District Court judge had made a bona fide assessment of the grounds of appeal and gave adequate reasons for judgment: [49] to [61]. NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [65]-[73] citing Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) applied. The District Court judge made no error of law in dismissing the appeal with costs; as the usual order is for costs to follow the event: [62] to [66]. Uniform Civil Procedure Rules 2005 (NSW), r 42.1 referred to.

As to issue (b): The fact that the first applicant's appeal in the Court of Appeal sought to agitate the same questions as the appeal in the District Court (being on the grounds of jurisdictional error and error of law on the face of the record), the decision of the District Court, not having been quashed, created estoppels which bound the Court of Appeal and prevented it from quashing the Local Court decision on those same grounds: at [69]. Geftlic v Merhi [2011] NSWCA 241 at [39] referred to. No jurisdictional error was established: [84] - [106] The Assessor's decision was not open to review for jurisdictional error merely because it may have been wrong: [91]. Geftlic v Merhi [2011] NSWCA 241 at [17] referred to. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163] (Hayne J) referred to. The applicants had not pleaded a set-off or brought a cross-claim, the first applicant accepted during submissions before the Local Court Assessor to need separately to make any cross-claim, and the Assessor took that matter into account: [92] - [96].

As to issue (c): No error of law on the face of the record was established: [107] to [116]. Discussion as to what constitutes the "record" of the Local Court and as to whether it includes the transcript of proceedings: [80] to [82].

Judgment

1. PAYNE JA: I agree with Stevenson J.
2. WHITE JA: I agree with Stevenson J.
3. STEVENSON J: The applicants are the parents of a child who attended St Andrew's Cathedral School in Sydney between August 2014 and August 2016.
4. The respondent is the Council of the School or, perhaps more accurately, the members of that Council from time to time. There is no issue as to the Council's status or its entitlement to commence the proceedings that have led to the matter now before this Court. I will refer to the respondent as "the School".
5. By summons filed on 19 February 2021 the applicants seek orders in the nature of certiorari quashing, on the bases of jurisdictional error and errors of law on the face of the record, orders made in the: 1. Small Claims Division of the Local Court of New South Wales [1] on 27 November 2019 entering judgment in favour of the School against the applicants in the sum of $13,876.30 for unpaid school fees for terms 1, 2 and 3 in 2016 together with amounts for filing and service fees, interest and costs (a total of $18,212.88); and 2. District Court of New South Wales [2] on 19 November 2020 dismissing with costs an appeal from that decision.
6. On 6 April 2021, the applicants circulated a proposed Amended Summons which included particulars of the asserted jurisdictional errors and errors of law on the face of the record. Dr O'Shea, who appeared for the School, objected to the applicants having leave to rely on the Amended Summons on the basis it was served outside the three-month period prescribed by the rules. [3] As the proposed Amended Summons was served only a day or two outside that three-month period, and as Dr O'Shea did not suggest that the School had been thereby prejudiced, the Court granted the applicants leave to file the Amended Summons in Court. Argument proceeded on the basis of the Amended Summons.
7. The applicants' case was conducted in person by the first applicant, Ms Supriya Eliezer. The second applicant, Mr Joseph Eliezer has signified his consent in writing to that course. I will refer simply to Ms Eliezer, unless the context otherwise requires.

Application for an adjournment and other orders

1. By Notice of Motion filed on 5 July 2021, three business days before the hearing date of 9 July 2021, the applicants sought: 1. an order that the hearing date be vacated; 2. an order that they be given leave to issue a subpoena to the School seeking various documents; and 3. declarations that the Local Court proceedings commenced by the School were vexatious proceedings for the purposes of the Vexatious Proceedings Act 2008 (NSW) and an abuse of process and that the School was not fit and proper "to operate a non-government school registered in NSW under the Education Act 1990".
2. The Court refused to make the orders sought and on 9 July 2021 dismissed the Notice of Motion with costs.
3. These are the reasons of the Court for taking that course.
4. In an email that Ms Eliezer sent to the Registrar on 5 July 2021, Ms Eliezer gave these reasons for seeking the vacation of the hearing: "Affidavit Evidence Required Applicants' summary of arguments…makes reference to facts, for example in paragraphs 11, 19, 21, 22 etc., that ought to be supported by affidavit evidence. However, at this stage no affidavit has been filed. The Applicants seek the opportunity to file evidence to support the facts in the summary of arguments and/or further facts of Local Court and District Court proceedings that may be relevant."
5. The paragraphs of the applicants' Summary of Argument to which Ms Eliezer referred contained allegations as to the procedure adopted in the District Court in the course of the applicants' appeal against the orders of the Local Court. As I set out below, [4] for the purposes of dealing with the Amended Summons, and assuming they could be relevant, I am prepared to assume in the applicants' favour the truth of these matters. Accordingly, there was no utility in granting an adjournment to enable the applicants to prove the matters asserted.
6. As to the application to issue a subpoena, as the presiding judge explained to Ms Eliezer on 9 July 2021, on an application for judicial review the Court may only consider the material that was before the judicial officer whose decision is being reviewed, other than in exceptional circumstances. Ms Eliezer did not identify any circumstance giving rise to the need to permit additional evidence to be tendered on this application.
7. In any event, Ms Eliezer offered no explanation as to why the applicants had not earlier sought to issue the subpoena. Further, the granting of leave would inevitably have involved vacating the hearing date. In those circumstances, the Court was not persuaded that leave should be granted.
8. The declarations sought in the paragraph of the Notice of Motion referred to at [8(c)] above raised new claims. Those claims could not properly be raised by notice of motion in the applications for judicial review of the decisions of the District Court and the Local Court. A notice of motion cannot be used to seek relief outside the scope of the proceeding in which the notice of motion is filed [5] . In any event, the School was successful in the proceedings in the District Court and the Local Court so they could not be characterised as vexatious or an abuse of process.

The Local Court proceedings

1. On 17 May 2019, the School commenced proceedings against the applicants in the Small Claims Division of the Local Court seeking to recover the fees and ancillary amounts to which I have referred.
2. The Local Court sitting in its Small Claims Division has jurisdiction to hear any money claim that does not exceed the jurisdictional limit of $20,000.00. [6]
3. Thus, plainly, the Local Court had jurisdiction to hear the School's claim.
4. In proceedings in the Small Claims Division of the Local Court: 1. the proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits; [7] 2. the rules of evidence do not apply; [8] 3. cross-examination is not permitted except as permitted by the rules or a practice note [9] , in effect only if an order for cross-examination has been made; and 4. the Magistrate or Assessor exercising jurisdiction may inform himself or herself on any matter relating to the proceedings in such manner as he or she thinks fit. [10]
5. As Leeming JA said in Tonab Investments Pty Ltd v Optima Developments Pty Ltd: [11] "The legislative policy is clear: relatively small claims brought in the Small Claims Division should be resolved efficiently, cheaply, relatively informally and finally in that Division. Otherwise the legal costs will swamp the original claim". [12]
6. On 17 June 2019 Ms Eliezer, on behalf of the applicants as defendants below, filed a Defence: 1. asserting that it was "an essential condition of enrolment" that the child would benefit from the School's gifted and talented program; and 2. denying liability to pay the fees because the School had "failed to substantially perform its contractual obligations and further expressly repudiated" the agreement upon which the School relied and because Ms Eliezer was thereby "entitled to treat the agreement as discharged due to [the School's] breach of contract".
7. The Court directed that evidence be filed and served by 2 October 2019.
8. On 2 October 2019 Ms Eliezer filed and served an affidavit made by her that day in which she deposed to: 1. allegedly "rude, aggressive and intimidating" behaviour by the child's teacher concerning the use by the child of his asthma puffer and his involvement in the School's science club and gifted and talented program; 2. giving notice to the School on 31 May 2016 that the child would leave the School at the end of August 2016; and 3. the alleged repudiation of the contract by the School on 8 August 2016 when it gave notice that the child's enrolment at the School would be suspended from 11 August 2016 due to the non-payment of fees for terms 1, 2 and 3.
9. On 3 October 2019, the School served a statement by its then Relationships Officer, Ms Aileen Soria. The statement was served one day late, a matter that Ms Eliezer complained about before the Assessor, [13] and evidently one reason she sought leave to issue a subpoena to the School. The statement annexed the documents on which the School relied, being an "Acceptance of Enrolment", invoices, a statement of account and letters of demand.
10. The matter was heard by Assessor Keir on 27 November 2019.
11. There having been no order for cross-examination, the matter was dealt with "on the statements". [14] The Assessor heard submissions from Ms Eliezer and the solicitor for the School, following which the Assessor delivered an ex tempore judgment, to which I will return, in favour of the School.

The District Court proceedings

1. An appeal from a decision of the Local Court sitting in its Small Claims Division to the District Court is available as of right, but only on the ground of "lack of jurisdiction or denial of procedural fairness". [15]
2. The applicants filed an Amended Summons Commencing an Appeal in the District Court seeking to invoke both of the available grounds of appeal and alleging that the Assessor: 1. "acted contrary to law and thereof with lack of jurisdiction"; and 2. "denied procedural fairness to [the applicants] and the [applicants were] not heard".
3. The appeal was heard by Hatzistergos DCJ on 19 November 2020.
4. His Honour delivered a 12 page judgment, evidently ex tempore, dismissing the appeal with costs. I will return to the judgment below.

The challenge to the orders in the District Court proceedings

1. As the decision of the District Court was to dismiss the appeal from the Local Court, the District Court decision is the operative decision, [16] I turn to it first.
2. There is no right to appeal to this Court from a decision of the District Court dismissing an appeal to that Court from the Local Court. [17]
3. However, an unsuccessful party to such an appeal can invoke this Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) to seek to impugn such a decision on the basis of either jurisdictional error or error of law on the face of the record. [18]
4. In the Amended Summons, Ms Eliezer particularised the applicants' contentions as to both jurisdictional error and error of law on the face of the record in the same terms.
5. Thus, Ms Eliezer contended that the trial judge made jurisdictional error and an error of law on the face of the record by: 1. "proceed[ing] on [a] misapprehension that the phrase 'lack of jurisdiction' in s 39(2) of the Local Court Act 2007 was not the same as the 'concept of jurisdictional error' and that the [applicants] [19] had conflated the two"; 2. "fail[ing] to engage in [a] bona fide assessment of the grounds of appeal and thereby effectively fail[ing] to exercise jurisdiction or exercis[ing] jurisdiction [which] is not valid"; 3. "err[ing] in law by failing to give adequate reasons"; and 4. "err[ing] in law in awarding costs in favour of the [School] where there was neither written nor oral submissions from the [School]".
6. I shall deal with each of these grounds in turn.

Alleged misapprehension as to the phrase "lack of jurisdiction"

1. This ground of review appears to proceed on a misapprehension by Ms Eliezer that an appeal was available to the applicants from the Local Court to the District Court on the grounds of jurisdictional error, as opposed to lack of jurisdiction.
2. This is not correct. An appeal was only available, relevantly, for "lack of jurisdiction". [20]
3. Ms Eliezer's misapprehension is revealed in this submission that she made to the District Court: "Before the ground of lack of jurisdiction can be considered it is necessary, therefore, to identify what may constitute jurisdictional error or lack of jurisdiction for the purposes of s 39(2) [of the Local Court Act 2007]".
4. Similarly, before this Court, Ms Eliezer submitted that the trial judge committed "error of law on the face of the record/jurisdictional error" because: "His Honour's interpretation of the meaning of the phrase 'lack of jurisdiction' appearing in s 39(2) Local Court Act 2007 is that it is not the same as the concept of jurisdictional error. Accordingly, [h]is Honour states that the test for lack of jurisdiction should be confined to the terms of s 39(2) [of the Local Court Act]".
5. This was a correct recitation of the view that the District Court judge expressed.
6. His Honour was correct.
7. Ms Eliezer has elided the concepts of: 1. a lack of jurisdiction of the Local Court, that is its "authority to decide" [21] the case before it; and 2. a jurisdictional error by the Local Court, for example, in making a decision outside the limits of its jurisdiction, or doing something it lacked power to do or making a mistake about a jurisdictional fact mandated by statute. [22]
8. The District Court judge recognised the distinction when he said, correctly in my opinion: "In support of that part of Ms Eliezer's appeal, the written submissions which were filed on 19 November 2020 summarised a number of authorities. It is relevant, however, to note that the submission that was made in respect of the lack of jurisdiction appears to conflate the statutory term in s 39(2) of the Local Court Act 2007, which is the phrase 'lack of jurisdiction' with the concept of jurisdictional error."
9. The District Court judge was not thereby proceeding under any "misapprehension" about the distinction between lack of jurisdiction and jurisdictional error. His Honour recognised the distinction. Unfortunately, it is Ms Eliezer who has misapprehended the position.
10. As I have said, there is no doubt that the Local Court had, by reason of s 30(2) of the Local Court Act, jurisdiction to hear the School's claim against the applicants.
11. The Assessor correctly pointed this out to Ms Eliezer: [23] "[MS ELIEZER]: As I said, this matter cannot be assessed here, because this matter is beyond the jurisdiction of this Court. ASSESSOR: It's not, I'm afraid. It's well within its jurisdiction. It's a claim for services provided and unpaid, and that's a fairly common claim that's brought in this Court. It's for less than $20,000, which is the maximum amount that this Court in its Small Claims division can deal with. There [is] no reason why I can't deal with this case. I intend to do that now."
12. This ground of review fails.

Alleged failure to make a bona fide assessment of the grounds of appeal

1. Ms Eliezer's written and oral submissions did not, directly, address this ground of review.
2. Ms Eliezer submitted that: 1. "There was no written or oral submission from [the School] in the District Court. Clearly, the [School] expects that the court should do the work for them"; 2. "The allocated judge did not hear the appeal. It was then passed to the duty judge"; and 3. "The duty judge insisted on proceeding on [the] papers. The applicant had not requested this and made some attempt to make oral submissions to complete the written submissions".
3. Assuming that these matters are correct, the question of whether the trial judge made a "bona fide assessment of the grounds of appeal" must also be considered by reference to his reasons.
4. Although his Honour's judgment was evidently given ex tempore, and was succinct, it was comprehensive. The reasons appear to me to demonstrate that the trial judge gave careful attention to the grounds of appeal and to the submissions Ms Eliezer made in support of those grounds of appeal. The trial judge dealt with all those submissions in a logical and systematic way.
5. I see no basis on which it could be concluded that the District Court judge did not give the grounds of appeal bona fide consideration.
6. This ground of review also fails.

Allegedly inadequate reasons

1. In relation to this ground, Ms Eliezer submitted: 1. "The principal complaint in the particularised grounds of review is that [h]is Honour failed to adequately address the grounds of appeal. It can be seen from [h]is Honour's reasons that the matter is rushed"; and 2. "[h]is Honour's reasons are not adequate due to failure to provide the path of reasoning".
2. Ms Eliezer then cited a number of authorities concerning the duty to give reasons, including Hunter v Transport Accident Commission, [24] and Singh v Minister for Immigration and Multicultural Affairs. [25]
3. Recently, the President reviewed the relevant principles in New South Wales Land and Housing Corporation v Orr. [26]
4. The President drew attention [27] to the observation of Samuels JA in Strbak v Newton [28] which are apt here: "…it is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that the reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given. In the present case, the reasons are certainly succinct; but that is often to be regarded as a judicial virtue. Trial Judges must always endeavour to balance their duty to explain with their duty to be brief."
5. The District Court judge's reasons, although succinct, extend over 11 pages. His Honour set out the School's claim, the matters raised by the applicants by way of defence to that claim and the matters to which Ms Eliezer deposed in her supporting affidavit. His Honour then dealt with Ms Eliezer's submissions concerning jurisdiction and concluded, essentially for the reasons I have set out above, that none of the matters raised by Ms Eliezer bespoke a lack of jurisdiction of the Local Court. His Honour then dealt with each of the grounds on which Ms Eliezer contended that the applicants had been denied procedural fairness in the Local Court and set out his reasons for rejecting those contentions.
6. His Honour did give a "basic explanation of the fundamental reasons" he reached his conclusions.
7. This ground of review also fails.

Alleged error concerning costs

1. At the conclusion of his reasons, his Honour announced that the appeal would be dismissed with costs.
2. His Honour did not invite submissions as to what costs order should be made. The School accepted in this Court that it had made no oral or written submissions to his Honour on costs.
3. However, costs follow the event unless it appears to the Court that some other order should be made, [29] and as the appeal was to be dismissed I cannot see that his Honour erred in ordering that it be dismissed with costs.
4. Ms Eliezer did not address this ground in her written or oral submissions.
5. This ground of review also fails.

Conclusion

1. No jurisdictional error or error on the face of the record has been established in relation to the decision in the District Court. The applicants' challenge to the orders of the District Court fails.

The challenge to the Local Court proceedings

1. The applicants also seek to challenge the decision of the Local Court on the basis of jurisdictional error and error of law on the face of the record.
2. To the extent that the applicants' challenge in this Court to the decision of the Local Court seeks to agitate the questions the subject of the applicants' appeal to the District Court, that is lack of jurisdiction and denial of procedural fairness, the decision of the District Court (not having been quashed) created estoppels which bind this Court and prevent it from quashing the decision of the Local Court on those grounds. [30]
3. To the extent that the applicants' challenges to the Local Court decision range more widely, the question arises as to whether, as a matter of discretion, they should be entertained.
4. One matter relevant to the exercise of that discretion is that the challenge is brought out of time. As I have mentioned, proceedings for judicial review must be commenced within three months of the date of the decision, although the court may, at any time, extend time. [31]
5. The decision of the Local Court was made on 27 November 2019. The period within which the challenge should have been brought expired on 28 February 2020. The applicants' Summons was filed almost a year later, on 19 February 2021.
6. Before us, Ms Eliezer explained that the applicants had not earlier sought to challenge the Local Court decision because of their appeal to the District Court and Ms Eliezer's understanding that "I can file an appeal or judicial review". [32]
7. Another matter potentially relevant to the matter of discretion is the fact that the applicants have in the meantime sought to challenge the Local Court decision by appeal to the District Court. That appeal failed, and the applicants' challenge in this Court to that decision also fails.
8. The fact that the grounds of appeal to the District Court were limited to lack of jurisdiction and denial of procedural fairness raises the question of whether these matters, alone, provide a basis for this Court, as a matter of discretion, to decline to entertain the application for review. [33]
9. These matters were not explored before us.
10. I find it unnecessary to resolve this potentially difficult question because, for the reasons that follow, I have concluded that the applicants have not made out a case for judicial review of the Local Court decision.

The alleged jurisdictional error and error of law

1. In the Amended Summons, the applicants particularised the alleged jurisdictional error by the Local Court as follows: "Particulars of Jurisdictional Error in LC 2019/00155126 1.2 The Assessor's decision in LC 2019/00155126 gives rise to jurisdictional error for reasons below. a. The Assessor erred in law by failing to take into account the following jurisdictional facts: i. That the agreement between the parties did not terminate normally as provided for by the contract, that is, there was a breach of contract. ii. There was an agreement for part payment in place that superseded the initial agreement. iii. There was an unresolved complaint of failure of performance or wrongful performance, such as, discrimination, on the part of the plaintiff. iv. The statement of claim was defective in that it selectively pleaded facts, failed to plead subsequent agreement for part payment, failed to plead an exception to the general rule that parties are discharged from performance upon termination for breach of contract. b. The Assessor in giving judgment for debt despite having notice that the defendant had a consumer complaint that could give rise to a counterclaim or set-off, erred in law and the error goes to jurisdiction because the Assessor: i. Deprived [the] defendant of the right to pursue equitable set-off. ii. Was procedurally unfair to the defendant in that the judgment for debt was given before the defendant had pursued a counterclaim or set-off. iii. Placed the plaintiff above the law where the plaintiff may have breached the rights of the defendant that needed to be answered under application of relevant laws. iv. Failed to address the whole of the controversy between the parties and by not doing so proceeded on a misapprehension that the [L]ocal [C]ourt in its [S]mall [C]laims [D]ivision was a specialist debt court rather than a court of general jurisdiction. v. Used public power for the private gain of the plaintiff. c. The Assessor's decision is not a valid exercise of jurisdiction because the Assessor: i. Took up the plaintiff's arguments and advocated on behalf of the plaintiff. ii. Engaged in one-sided bullying of the defendant. iii. Acted in bad faith by taking advantage of the defendant as litigant in person and accepting [the] plaintiff's evidence and version of the facts as truth. iv. Conducted proceedings in a manner that was not a bona fide exercise of jurisdiction but merely a pretence and a sham. v. The conduct gave rise to apprehended bias on the part of the Assessor."
2. The applicants particularised the alleged error of law on the face of the record as follows: "Errors of law on the face of the record in LC 2019/00155126 2.2 Errors of law on the face of the record in LC 2019/00155126 are that the Assessor: a. Failed to strike-out [the] defence and proceeded to give judgment with [a] valid defence in place. b. Used the pretext of applying [the] balance of probabilities test to legitimise [the] plaintiff's false evidence and plaintiff's [S]tatement of [C]laim. c. Permitted and relied on evidence of [the] plaintiff's witness who was not [an] employee of the plaintiff at the material time, that is, at the time of the contract between the parties."

What is the "record"?

1. The material from the Local Court that the applicants have included in the Court Book comprises: 1. the School's Statement of Claim; 2. the applicants' Defence; 3. Ms Eliezer's Affidavit of 2 October 2019; 4. Ms Soria's Statement of 3 October 2019; 5. the transcript of proceedings before the Assessor, including her reasons for decision; and 6. the "Notice of Orders Made".
2. The "record" of the Local Court included the pleadings, the impugned order [34] and the Assessor's reasons. [35]
3. It is arguable that the "record" did not include the transcript of argument before the Assessor as this was not referred to in the reasons of the Assessor, or the Notice of Orders Made whether by being incorporated "as an integral part" [36] of the reasons or orders, or otherwise. However, it is not necessary to decide what is the scope of the record of the Local Court for the purposes of certiorari because, for the reasons that follow, no error of law is revealed even if regard can be had to all of the material from the Local Court included in the Court Book.
4. I turn to the grounds of review propounded by the applicants.

Alleged failure to take into account "jurisdictional facts"

1. As particularised at par 1.2a of the Amended Summons, the "jurisdictional facts" that the applicants contend that the Assessor failed to take into account were matters relevant to the applicants' pleaded case in the Local Court that the School had "failed to substantially perform its contractual obligations and further expressly repudiated the agreement" and which "entitled [the applicants [37] ] to treat the agreement as discharged due to the [School's] breach". [38]
2. An objective jurisdictional fact is one which must exist as a precondition to the engagement of a statutory power. Whether legislation creates a jurisdictional fact of the kind to be objectively ascertained by the Court is a question of statutory construction. [39]
3. The alleged "jurisdictional facts" comprised, in substance, the alleged facts that: 1. there was an agreement between the applicants and the School for part payment of fees; 2. the School had failed to perform or had wrongfully performed its obligations under its agreement with the applicants by discriminating against the applicants' child; 3. the agreement had been terminated for breach and not merely by effluxion of time; and 4. the Statement of Claim was defective because it failed to plead these matters.
4. These matters were not capable of being "jurisdictional facts".
5. In addition, as to the allegation of an agreement for part payment of fees, this was not pleaded in the applicants' Defence and, assuming contrary to my tentative view that it is permissible on this application to look at the transcript, was not referred to by Ms Eliezer in her submissions to the Assessor.
6. Otherwise, the Assessor did deal with the applicants' contentions concerning these alleged "jurisdictional facts".
7. Thus, the Assessor found: "ASSESSOR: It is the plaintiff's claim for unpaid school fees in the sum of $13,876.30. The invoices have been provided in evidence by Aileen Soraya in her statement of 3 October 2019. There is an acceptance of offer of enrolment in relation to the defendant's son…commencing the year 2014. That enrolment form has been signed by both defendants. The enrolment form contains a clause at cl 18 that if an account or fees are not paid in full within 60 days from the due date, the student's enrolment be suspended. In this matter, there remains some fees that were outstanding as at 22 April in the sum of $10,585. The invoices show addition sums being added post that date totalling $13,876.30. The amount outstanding had been unpaid for 60 days. Therefore, the plaintiff is entitled to suspend the defendant's son's enrolment which they did do on 8 August. Prior to that, the defendant had given intention to withdraw her son from the school. She gave notice at the end of May by email and said that she would be withdrawing her son at the end of August. It just so happens in the meantime, because of the unpaid fees and because of the contract which allows suspension of enrolment for unpaid fees, the plaintiff exercised their right under the contract and terminated or suspended the enrolment. … The defendant also raises particular complaints about the school and the treatment of her child. They are not, unfortunately, particularly relevant to the issue of payment of fees. They might give rise to separate causes of actions. The concern is whether there was racism; this Court does not have jurisdiction over racism complaints. There are some concerns about teachers being rude, aggressive and intimidating. They might be the types of things that the plaintiff could make a complaint to the school about and have them dealt with, but they are not necessarily an excuse for not paying school fees to which she is obligated to pay under the contract."
8. Ms Eliezer's submissions were, in effect, that the Assessor reached the wrong conclusion about these matters. But, even if that were so, that is not jurisdictional error, let alone a failure to take into account jurisdictional facts. The Assessor's decision is not open to review for jurisdictional error merely because it was wrong. [40] Incorrectly deciding something that the decision maker is authorised to decide is an error within jurisdiction. [41]

Giving judgment notwithstanding notice of an alleged counter-claim or set-off

1. As set out at par 1.2b of the Amended Summons, the applicants' contention is, in effect, that the Assessor entered judgment against them despite having notice that the applicants contended they had a "consumer complaint" that could be pursued by counter-claim or set-off and thereby "failed to address the whole of the controversy between the parties".
2. The applicants did not plead or otherwise refer to any set-off in their Defence in the Local Court and did not bring a Cross-Claim.
3. Further, and again assuming it is permissible on this application to look at the transcript of proceedings before the Assessor, this question was raised during argument during which Ms Eliezer said: "We were asked to leave; we left. If you ask people to leave and you do not want to perform your contract, I am discharged from paying any levies or any amount that has been told by the school to pay to me. I have entitlement to the compensation. If the Court is suggesting and the [School] is suggesting [42] that I should be filing my compensation claim separately, I will have to do that. I have not done so because I want to see that the [School] is able to resolve the matter before that, but it doesn't look like the [School] has any intention...". [43]
4. Thus, it appears Ms Eliezer's attention was drawn to the need to make any "compensation claim" separately. Ms Eliezer accepted that: "I will have to do that".
5. In any event, the Assessor took these matters into account in her reasons: see [90] above.
6. Again, Ms Eliezer's submissions were, in effect, that the Assessor was wrong to conclude that the applicants' "complaints about the [S]chool" were not "particularly relevant to the issue of payment of fees" and not "necessarily an excuse for not paying school fees to which she is obligated to pay under the contract".
7. As I have said, even if this were so, it does not provide a ground for review of the basis of jurisdictional error.

Allegedly invalid exercise of jurisdiction

1. By this ground of review, set out at par 1.2c of the Amended Summons, the applicants in effect allege a denial of procedural fairness by contending that the Assessor: 1. "took up" the School's arguments and "advocated" on the School's behalf; 2. bullied Ms Eliezer; 3. acted in bad faith by "taking advantage" of Ms Eliezer as a litigant in person and accepting the School's evidence; and 4. conducted a "sham" proceeding and showed "apprehended bias".
2. These complaints are, in effect, those the applicants raised before the District Court as being a denial of procedural fairness. The District Court judge rejected those contentions and as the challenge to the trial judge's decision has failed, this created estoppels which bind this Court and prevent it from quashing the decision of the Local Court on those grounds [44] .
3. In any event, and again assuming it is permissible for this purpose to have regard to the transcript before the Assessor, I can see no basis for any of the applicants' contentions. In my opinion, a fair reading of the transcript shows that the Assessor treated Ms Eliezer courteously and conducted the proceedings neutrally and fairly.
4. In relation to the service by the School, one day late, of the Statement by its Relationships Officer, the Assessor was particularly patient and could not be seen as taking up the School's case, or advocating for the School or taking advantage of Ms Eliezer by accepting the School's evidence.
5. Thus, the following exchanges took place between the Assessor and Ms Eliezer: "ASSESSOR: Ms Eliezer, the evidence that the [School] has filed really just attaches invoices; they're not sort of alleging anything-- [MS ELIEZER]: I understand that. ASSESSOR: --outside the basic premise to the claim which is that your son…[w]as enrolled in this school…there's an acceptance of enrolment form which I don't think is prejudicial to you because you signed that. [MS ELIEZER]: No, those are not the issues. … ASSESSOR: I note that [the School's] evidence was filed a day late. It was also filed some time ago, back on 3 October. All it does [is] attach invoices that were sent to your PO box which you say is your PO box and attaches an enrolment form which you've signed and you say you've seen. I can't really see that there's any prejudice to you in allowing this evidence. It's not in reply to what you've said in your evidence, from what I can see. It's simply evidence of the debt. [MS ELIEZER]: Okay. ASSESSOR: So I can't see that there's any prejudice to you. What I would suggest is that you maybe take some time if you want to. If you don't, I'm happy just to hear the case based on the evidence that I have which is two statements."
6. Argument then proceeded without further reference to that question.
7. This ground of review is not made out.

Conclusion on jurisdictional error

1. For these reasons, my conclusion is that the applicants have failed to establish any jurisdictional error on the part of the Local Court.

Failure to strike out the Defence

1. This ground, which was not developed in Ms Eliezer's written or oral submissions, appears to proceed on the assumption that it was not open to the Assessor to give judgment against the applicants without first striking out their Defence.
2. That is a misapprehension on the part of the applicants. What has happened is that the Assessor did not accept that the matters in the applicants' Defence amounted to a defence to the School's claim.
3. That was not an error of law, let alone one on the face of the record.

Applying balance of probabilities to legitimatise the School's "false evidence" and Statement of Claim

1. Again, this ground was not developed by Ms Eliezer.
2. No doubt the Assessor did decide the School's case on the balance of probabilities. There is no evidence to suggest the School advanced any evidence that was "false".
3. No error of law is established.

The Assessor's reliance on the evidence of a witness for the School who was not an employee of the School at the date of contract

1. This asserted error of law appears to be directed to the evidence adduced by the School from its Relationships Officer, Ms Soria, the point apparently being that Ms Soria was not employed by the School at the date of the contract between the applicants and the School [45] and that the Assessor's reliance on her evidence was thus somehow misplaced.
2. Ms Soria's Statement did no more than annex the business records of the School that I have described. It was not necessary for that purpose that Ms Soria be shown to have been employed by the School at any particular time. In any event, in the Small Claims Division of the Local Court, the rules of evidence do not apply and the Assessor was entitled to inform herself of any relevant matter in any manner she thought fit. [46]
3. No error of law is established.

Conclusion on error of law

1. For these reasons, my conclusion is that the applicants have failed to establish any error of law on the face of the record on the part of the Local Court.

Conclusion

1. There is no substance to the applicants' challenge to the decision of the Local Court.

The result

1. As I have concluded that the applicants' challenge to the orders of the District Court fails, and that the applicants' challenge to the orders of the Local Court also fails, I propose that the Amended Summons be dismissed with costs.
2. The School has foreshadowed that, in that event, it would seek an order that its costs be specified as a gross sum under s 98(4) of the Civil Procedure Act 2005 (NSW).
3. As the School only foreshadowed that application on the eve of the hearing, and as Ms Eliezer was not in a position to deal with the question at the hearing, I also propose that Ms Eliezer be directed to file and serve any evidence or submissions (such submissions to be limited to no more than 5 pages) she wishes to make in reply to the School's submissions on this question within 10 business days. The Court will decide the application on the papers.

Endnotes

1. The Council of St Andrew's Cathedral School v Eliezer (Local Court (NSW), Assessor Keir, 27 November 2019, unrep).
2. Eliezer v The Council of St Andrew's Cathedral School (District Court (NSW), Hatzistergos DCJ, 19 November 2020, unrep).
3. Uniform Civil Procedure Rules 2005 (NSW) r 59.10.
4. See [51] below.
5. Phillips v Walsh (1990) 20 NSWLR 206 at 209 (McLelland J)
6. Local Court Act 2007 (NSW) ss 29(1)(b), 30(2).
7. Ibid s 35(2).
8. Ibid s 35(3).
9. Ibid s 35(4).
10. Ibid s 35(5).
11. (2015) 90 NSWLR 268; [2015] NSWCA 287.
12. At [101].
13. See [102] to [104] below.
14. T1.29.
15. Local Court Act s 39(2).
16. Choi v NSW Ombudsman [2021] NSWCA 68 at [21] (Meagher, White and Brereton JJA).
17. An appeal, even with leave, is not available under s 127 of the District Court Act 1973 (NSW) as that section provides only for appeals from a judgment or order in an "action"; an appeal from the Local Court to the District Court is not an "action": see s 44 of the District Court Act.
18. For example, Tonab Investments Pty Ltd v Optima Developments Pty Ltd at [113] (Leeming JA): s 176 of the District Court Act is not a privative clause preventing a decision of the District Court in exercise of its civil appellate jurisdiction from the Local Court being quashed on either of these bases, as s 176 applies only to decisions of the District Court's criminal appellate jurisdiction: for example, Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10] (Basten JA, Giles and McColl JJA agreeing); Fairfax Digital Australia & New Zealand Pty Ltd v District Court of New South Wales [2012] NSWCA 172 at [6] (Bathurst CJ, Basten and Whealy JJA), Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 at [6] (Basten JA) and [76] (Sackville AJA).
19. Ms Eliezer used the word "plaintiff" but must have meant to refer to the applicants.
20. Local Court Act s 39(2).
21. See, M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, The Federation Press) at [1.1].
22. See, for example, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163] (Hayne J) and see the catalogue of jurisdictional errors set out in M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at [1.140].
23. At T5.38ff.
24. [2005] VSCA 1 at [21] (Nettle JA, as his Honour then was).
25. [1999] FCA 1322 at [9] (Kiefel J, as the Chief Justice then was).
26. (2019) 100 NSWLR 578; [2019] NSWCA 231 at [65] - [77].
27. At [73].
28. (Court of Appeal (NSW), 18 July 1989, unrep); adopted by Cole J in Xuereb v Viola (1989) 18 NSWLR 453 at 469 and by Fitzgerald P in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187.
29. Uniform Civil Procedure Rules r 42.1.
30. Geftlic v Merhi [2011] NSWCA 241 at [39] (Handley AJA, Young JA agreeing; cf Giles JA at [11]).
31. Uniform Civil Procedure Rules r 59.10.
32. T6.50.
33. See, the observations of Giles JA in Geftlic v Merhi at [11] and [12]), cf the views of Handley AJA at [41] (with whom Young JA appeared to have agreed at [24]).
34. Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at [19] (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
35. Section 69(4) of the Supreme Court Act.
36. Craig v State of South Australia at [18].
37. Although the Defence refers only to Ms Eliezer.
38. Defence par 4.
39. Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8.
40. For example, Geftlic v Merhi at [17] (Giles JA).
41. Re Refugee Review Tribunal; Ex parte Aala at [163].
42. It is not clear on what basis Ms Eliezer said that either the Court or the School was making any such suggestion.
43. T6.17.
44. See [69] above
45. Although Ms Eliezer did not draw attention to any evidence that this was so.
46. See [19] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2021